Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Horse Racing Commission ("Commission") properly relied on KRS 61.878(1)(a) in denying Thomas D. Callahan's November 23, 2009, request for log entries for a freezer storage unit. For the reasons that follow, we conclude that the Commission's reliance on the cited exemption was not adequately supported.
The Commission is charged with conducting tests of blood and urine from thoroughbred racehorses to detect the presence of certain drugs. Pursuant to 810 KAR 1:018, Section 12, a portion of each biological specimen is maintained in a "split sample freezer" in case the owner or trainer of a horse requests further testing after an initial positive result. Regarding such freezers, Section 12 provides in part:
(d) A log shall be maintained by the commission veterinarian that shall be used each time a split sample freezer is opened to specify each person in attendance, the purpose for opening the freezer, identification of split samples deposited or removed, the date and time the freezer was opened, the time the freezer was closed, and verification that the lock was secured prior to and after opening the freezer. An [ sic ] commission veterinarian or his or her designee shall be present when the freezer is opened.
(e) Evidence of a malfunction of a split sample freezer or samples that are not in a frozen condition during storage shall be documented in the log.
Mr. Callahan is the trainer of a horse named "Gold Medal Girl," whose blood serum tested positive for an excessive amount of the anti-inflammatory drug Flunixin in June 2009. In his November 23 request, he stated as follows:
I would appreciate a copy of the pages containing entries in the log for the storage unit containing the split sample for Gold Medal Girl from the time the sample was placed in the unit until and including August 10, 2009. This is the log describes in 810 KAR 1:018 Section 12, Subsections (d) & (e). I would also like a copy of the test result from the Florida Laboratory for Gold Medal Girl.
On December 3, 2009, 1 Commission Records Custodian Kendra Shoop replied:
Pursuant to your open records request, the attached responsive records are being made available. Please note that some parts of these records have been redacted because they are believed to be exempt under the Open Records Act statute. Specifically, pursuant to KRS 61.878(1)(a), this information was redacted because it constitutes information of a personal nature that would constitute a clearly unwarranted invasion of personal privacy.
Enclosed were the laboratory test results and one heavily redacted page from a freezer log. The log sheet was arranged in six columns, such that each column contained the information for one time the freezer was opened. On the page provided to Mr. Callahan, all but one column had been masked. The one visible entry indicated that the freezer was opened at 12:25 p.m. on June 7, 2009, for the purpose of adding 22 samples, and was closed at 12:28 p.m.; it was noted that the samples inside the freezer were in frozen condition.
Mr. Callahan initiated this appeal on February 8, 2010. In his letter of appeal, he complains that "[t]he horse Gold Medal Girl is not identified," "[t]he page is not numbered," and he cannot identify the person whose initials are recorded. These issues cannot be addressed under the Open Records Act, since the Act governs requests for records, not requests for information. 03-ORD-028. If the information sought by Mr. Callahan is not contained in the requested records, the Commission has no obligation to compile that information. 02-ORD-165. Mr. Callahan also asks, "Is this an actual page as described in 810 KAR 1: 018 Sec 12 (d) & (e)?" In the absence of any indications to the contrary, we presume the record to be what it purports to be. The most pertinent question posed by Mr. Callahan's appeal is this one: "What information of a personal nature would be on a split sample log page[?]"
The Commission responded to the appeal as follows on February 16, 2010, with a letter from General Counsel Susan Bryson Speckert:
The contents of the log are self-explanatory and kept pursuant to 810 KAR 1:018(d) [sic]. We only supplied the log from June 7, 2009 because it is the only log that relates to the split sample of Gold Medal Girl.
The split sample was not removed from the freezer because Mr. Callahan did not request testing of the split sample within three business days after he learned of the positive finding as required under 810 KAR 1:018(12)(2)(b). ?
Upon information and belief, Mr. Callahan is under the misapprehension that there was a power outage that affected the split sample freezer. He is incorrect. Had there been a power outage or any other malfunction of the split sample freezer, it would have been entered on the log pursuant to 810 KAR 1:018(12)(1)(e).
?
The KHRC responds thoroughly and promptly to many Open Records Requests. When we supply copies of the Split Sample Freezer Log we only supply information that is responsive to the request. That is, we supply information on the relevant horse and the relevant date. It is our position that information regarding other horses and other dates is exempt under the Act and not relevant.
Pursuant to KRS 61.880(2), this office has reviewed a complete and unredacted copy, provided by the Commission, of the freezer log for the period requested by Mr. Callahan. In a transmittal letter sent with those records, Ms. Speckert added to her previous argument:
[E]ven if there had been a power outage, it would have no bearing on this case because Mr. Callahan did not request testing of the split sample within three business days after he learned of the positive finding as required under 810 KAR 1:018(12)(2)(b). Thus, the only entry on the Split Sample Log that is relevant to Mr. Callahan is from the day the horse ran, June 7, 2009. It is our position that the other log entries are irrelevant to Mr. Callahan, and, therefore, we did not produce them in our response to his Open Records request.
At no point does Ms. Speckert expand upon the Commission's original invocation of KRS 61.878(1)(a), which was the only statutory basis offered for the redactions.
The fundamental policy embodied in the Open Records Act is that "free and open examination of public records is in the public interest. " KRS 61.871. Pursuant to KRS 61.872(2), "[a]ny person shall have the right to inspect public records. " There is no condition that the records be "relevant" to the person requesting them. On the contrary, an applicant's identity or purpose for seeking records is, generally speaking, immaterial to the disposition of an open records request. 07-ORD-057, p. 4; 02-ORD-132, p. 7. Absent a specific statute limiting access to such records, Mr. Callahan is just as entitled to view freezer log entries for other horses as he is for the horse he trained.
We turn to an analysis of the privacy exception relied upon by the Commission in support of its partial denial of the request. KRS 61.878(1)(a) authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In 1992, the Kentucky Supreme Court established a standard by which we judge the propriety of a public agency's reliance on KRS 61.878(1)(a) as a basis for denying access to public records. At pages 327 and 328 of Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Court articulated the following standard:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
The Court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity . . . ." Id.
In a subsequent analysis of the privacy exemption, the Court of Appeals refined this standard. Zink v. Com., Dept. of Workers' Claims, 902 S.W.2d 825 (Ky.App. 1994). At page 828 of that opinion, the court discussed its "mode of decision":
[O]ur analysis begins with a determination of whether the subject information is of a 'personal nature.' If we find that it is, we must then determine whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy. ' This latter determination entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [ Board of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
Having recognized a cognizable privacy interest in the records at issue in that case, the court turned to the issue of whether an invasion of privacy was warranted based on a weighing of the public interest in disclosure against the privacy interest involved:
We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. ? As stated in Board of Examiners, supra, "[t]he public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good. " 826 S.W.2d at 328. At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.
Zink, 902 S.W.2d at 828-29. Recognizing the existence of competing interests when KRS 61.878(1)(a) is asserted, this office has stated that "it is incumbent on the agency advocating nondisclosure of records relating to an individual ? to satisfy its burden of proof that the privacy interests of that [individual] are superior to the public's interest in disclosure. " 00-ORD-162, p. 6.
In this case, we can find no information of a "personal nature." We are aware of no statute or decision in which the concept of "personal privacy" has been extended to horses. KRS 446.010(27) defines "person" as extending to "bodies-politic and corporate, societies, communities, the public generally, individuals, partnerships, registered limited liability partnerships, joint stock companies, and limited liability companies." Horses, in subsection (6) of the same statute, are included in the definition of "cattle."
Furthermore, the freezer log entries contain no identifying information about either horses or persons, nor do they contain any test results. When samples are added to the freezer, the entry merely indicates how many samples and the date. The only time an individual sample is identified is when it is removed for testing, and even then the horse and trainer are not named. Rather, as the Commission points out in its February 16th response:
To ensure the integrity of the testing procedures, horses are assigned a tag number and all testing is done anonymously. ? Removable bar codes are attached to the sample tags. The sample tags are filled out, and the bar codes removed and placed on the samples. The sample tag is retained by the Kentucky Horse Racing Commission and all correspondence with the lab regarding the sample is done with reference to the tag number.
Therefore, even assuming there could exist a cognizable privacy interest for either the horse or the trainer, such interest would be protected by the anonymous testing procedure, which ensures that the laboratory does not possess the identity of the horse or trainer.
The split sample freezer logs show only the working condition of the freezer and what was done with it, when, by whom. In short, the information reveals precisely what the court in Zink viewed as central to the public interest --whether the agency is properly executing its function. Since the Commission has failed to articulate any privacy interest competing with this public interest, the balance is decisively in favor of disclosure. We therefore conclude that the Commission violated the Open Records Act by partially denying access to the freezer log entries requested by Mr. Callahan.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Thomas D. CallahanKendra ShoopSusan Bryson Speckert, Esq.
Footnotes
Footnotes
1 Because the record does not reflect when the Commission received Mr. Callahan's letter, we cannot determine whether the response was timely under KRS 61.880(1).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -